A-2143326.
Decided by Board October 31, 1955.
Permission to return to unrelinquished domicile — Section 212 (c) of Immigration and Nationality Act — Alien repatriated to native country pursuant to law not eligible.
A native of Japan who became a permanent resident of the United States in 1921 and who was repatriated to Japan in August 1942 with other diplomatic officials of the Japanese Government pursuant to law ( 50 U.S.C. 21) is not eligible for relief pursuant to section 212 (c) of the Immigration and Nationality Act, since he did not depart "voluntarily" from the United States and it cannot be said that his status had not changed.
EXCLUDABLE:
Act of 1952 — Section 212 (a) (6) — Tuberculosis.
BEFORE THE BOARD
Discussion: The appellant is a 55-year-old married male, a native and citizen of Japan. He last arrived in the United States at the port of Seattle, Washington, on October 21, 1954, and applied for admission for permanent residence. He presented a nonquota immigrant visa issued to him in Kobe, Japan, on September 9, 1954, as the spouse of a United States citizen. On arrival, appellant was ordered held for further medical examination. On October 29, 1954, he was permitted to proceed to his destination on parole, pending the outcome of certain medical examinations.
A certificate from the United States Public Health Service dated December 30, 1954, shows that the appellant is afflicted with pulmonary tuberculosis in a contagious stage. The special inquiry officer, by decision dated January 26, 1955, has found the appellant excludable from the United States on the above-stated ground. Since the excluding decision of the special inquiry officer is based upon a certification from the United States Public Health Service, the alien has no right of appeal from such decision (sec. 236 (d), Immigration and Nationality Act). This case is before us on appeal from the decision of the special inquiry officer denying relief under section 212 (c) of the Immigration and Nationality Act. In the event that the ground for exclusion is not waived through the exercise of the discretion under section 212 (c), appellant desires the alternative relief of parole pursuant to the provisions of section 212 (d) (5) of the Immigration and Nationality Act.
At the hearing before the special inquiry officer, the appellant filed an application requesting temporary admission under section 212 (d) (3) (B), Immigration and Nationality Act, for hospitalization and medical treatment in addition to an application for readmission as a returning resident under section 212 (c) of the same act. The special inquiry officer denied both applications and directed that the case be remanded to the District Director, Seattle, Washington, for consideration under section 212 (d) (5) of the Immigration and Nationality Act and 8 C.F.R. 212.9 without prejudice to the alien renewing his application for entry as an immigrant at such time as the cause for which he is now excludable appears to have been overcome. The special inquiry officer further directed that if it appears to the district director that the conditions of any authorized parole for medical treatment are not fulfilled or become impracticable that the case be thereafter referred to the special inquiry officer for further proceedings. Counsel has indicated that although he does not agree with the reasoning and conclusion of the special inquiry officer in denying the appellant's application under section 212 (d) (3) (B) no appeal is being taken from the denial of such application.
The record shows that the appellant originally entered the United States at the port of Seattle, Washington, on August 15, 1921, when he was admitted for permanent residence. He married a native of Oregon on February 3, 1929. Twin sons, the only issue of this marriage, were born in Portland, Oregon, on September 15, 1931. The appellant's spouse lost her United States citizenship through her marriage to the appellant but reacquired United States citizenship through naturalization on February 22, 1940. In about 1928 or 1929 appellant obtained employment as office secretary and clerk at the Japanese Consulate, Portland, Oregon, and continued with such employment until the attack on Pearl Harbor. Shortly thereafter, in December 1941, appellant was taken into custody with other employees and officials of the Japanese Government and was transferred to the eastern part of the country. He was detained from January until June 1942 in hotels in West Virginia and Virginia where only persons connected with the Japanese diplomatic service were interned. In August 1942 he was repatriated to Japan with diplomatic officials of the Japanese Government.
Appellant's wife testified that the latter part of December 1941, after her husband was taken into custody, she was taken to the consulate by the FBI and subsequent thereto accompanied her husband when he was transferred to the eastern part of the United States. She and their two sons accompanied the appellant to Japan in August 1942. Her testimony is not clear as to whether she was compelled to make the trip to Japan or whether she went there voluntarily because of her desire to be with the appellant. She arrived in the United States with the appellant in October 1954 and was admitted as a citizen. She asserted that she registered with the American consul in Kobe as soon as the American consulate was reopened there in about 1946 but that she was delayed in returning to the United States because she had to wait for the appellant as he wished to return too. She said that her children were attending school at the time and she could not leave her children and husband stranded without her.
The appellant testified that he never intended to give up his United States residence. He further testified that he desired to return to the United States all the time but was unable to come here until after the enactment of the Immigration and Nationality Act of 1952 and that he made an application right away. When asked whether he remembered the year that he first went to the American consulate in Kobe and talked to someone there about returning to the United States, he at first testified that it was in 1950. When then asked whether he did anything between 1945 and 1950 he alleged, however, that right after the war in 1945 he went to the American consulate in Kobe and requested permission to return to the United States but the consul said to wait until after the treaty between America and Japan. He stated that he was also told at the American consulate in Kobe that he could not return until the law was changed.
The special inquiry officer comments that it probably had been concluded that the appellant was racially ineligible to citizenship and not eligible to receive a quota immigration visa under the law then in effect. However, if appellant was told at the American consulate that he was ineligible for return to the United States the American consul probably also concluded that the appellant was not eligible for return as a resident since under section 13 (c) of the Immigration Act of 1924 an alien ineligible to citizenship was nevertheless admissible to the United States if he came within the provisions of section 4 (b) of that act, which provided for nonquota status to an immigrant previously lawfully admitted for permanent residence, who was returning from a temporary visit abroad.
While in Japan, appellant was self-employed as a farmer on a farm owned by a brother. He testified that he sold his property in Japan before departing for the United States. His two sons are still in Japan but, according to counsel, plan to return to the United States. Appellant has no property in the United States. His only assets consist of $500 in cash.
In order to be eligible for relief under section 212 (c) of the Immigration and Nationality Act, appellant must establish that he was "lawfully admitted for permanent residence"; that he temporarily proceeded abroad voluntarily and not under an order of deportation; and that he is returning to a lawful unrelinquished domicile of seven consecutive years.
Section 101 (a) (19) of the Immigration and Nationality Act defines the term "lawfully admitted for permanent residence" as the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed.
The application for the visa executed by the appellant on September 9, 1954, at Kobe, Japan, shows that he stated therein that he was voluntarily repatriated to Japan in 1942. In his testimony in the instant proceedings he indicated that he had protested to the Federal Bureau of Investigation about being returned to Japan and had stated that he desired to stay in Portland, Oregon, but that the Federal Bureau of Investigation nevertheless interned him. Appellant further testified that he had no choice about returning to Japan and was sent there with other Japanese governmental officers and employees. His wife also testified that he was compelled to leave the United States by those in authority.
It is apparent from the record that appellant did not depart "voluntarily." He was repatriated and had no choice but to return to Japan. Such repatriation was provided for by law (section 21, Title 50, U.S.C.; Presidential Proclamation No. 2525 of December 7, 1941). Under the circumstances, it cannot be said that appellant's status has not changed or that he departed "voluntarily" within the meaning of section 212 (c) of the Immigration and Nationality Act. Accordingly, he is ineligible for section 212 (c) relief.
The Board does not have jurisdiction to grant appellant's alternative request for parole into the United States under the provisions of section 212 (d) (5) of the Immigration and Nationality Act ( Matter of K---- H---- C----, A-6665545, Int. Dec. No. 631, B.I.A., 1954). 8 C.F.R. 212.9, which implements this provision of the statute, places the authority to so parole in the district director or the officer in charge having administrative jurisdiction of the port where the alien seeks to enter. Hence, in ordering that the case of the appellant be remanded to the District Director, Seattle, Washington, for consideration under section 212 (d) (5) of the Immigration and Nationality Act, the special inquiry officer has referred the case to the appropriate administrative official. Accordingly, the appeal will be dismissed.
Order: It is ordered that the appeal be and the same is hereby dismissed.